HIGH COURT BACKS DACA
Attempt to end program ‘arbitrary and capricious’
“It was such a relief. I couldn’t believe it. I was expecting they were going to side with the administration. It was a huge, joyous moment.”
Jose Patiño
DACA recipient and education and policy director at Aliento, an immigrant advocacy group
The Supreme Court on Thursday ruled that the Trump administration wrongly ended the Obama-era program that has allowed hundreds of thousands of undocumented “Dreamers” to temporarily live and work in the U.S without the threat of deportation.
The court’s 5-4 decision means that for now some 650,000 young immigrants brought to the U.S. as children will retain deportation protections and work permits.
The Trump administration, however,
could decide to try to rescind the program again by implementing procedures the court said were not properly followed.
“Dreamers” had anxiously awaited the court’s ruling, which marks a substantial victory for young undocumented immigrants brought to the U.S. as children and a blow to the Trump administration’s efforts to kill the DACA program.
“I feel energized that the highest court in the nation knows that the Trump administration is making decisions that are capricious and arbitrary and are not benefiting the country as a whole,” said Karina Ruiz, executive director of the Arizona Dream Act Coalition, which advocates for legal status for “Dreamers.” They are commonly referred to as “Dreamers,” based on neverpassed proposals in Congress called the DREAM Act.
Ruiz said she was pleasantly surprised by the Supreme Court’s decision, and had thought the court would rule in the other direction.
“I was not expecting the Supreme Court to rule in our favor. I had some hope, but it was not an expectation of mine,” she said.
She said the ruling is only a shortterm victory. But the decision will galvanize “Dreamers” to keep pressuring Congress to pass legislation that would allow them to remain in the U.S. permanently.
There are just over 24,000 DACA recipients in Arizona, the sixth-most in the United States.
Court: ‘Decision to rescind DACA was arbitrary and capricious’
Chief Justice John Roberts wrote the majority opinion and was joined by the court’s four liberal justices in deciding the case in favor of DACA recipients.
The Trump administration’s “decision to rescind DACA was arbitrary and capricious under” the Administrative Procedure Act, the court concluded.
President Donald Trump expressed his apparent disappointment on Twitter, writing, “Do you get the impression that the Supreme Court doesn’t like me?”
In legal arguments, the Trump administration and DACA supporters both agreed that the Trump administration had the authority to end the program.
But the Supreme Court concluded that in winding it down, the Department of Homeland Security did not properly follow rules under the Administrative Procedure Act, said Angela Banks, a law professor at Arizona State University’s Sandra Day O’Connor College of Law.
The Supreme Court “sidestepped” the Trump administration’s argument that the DACA program was created illegally by the Obama administration, and only addressed whether the Department of Homeland Security had properly followed the Administrative Procedure Act, Banks said.
In his dissent, Justice Clarence Thomas wrote that the creation of the DACA program was an illegal use of executive authority from the beginning, and therefore should have been reversed.
“Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision,” Thomas wrote.
The Trump administration must now decide whether it will again attempt to end the DACA program, which could be politically fraught with the presidential election in November and the protests against police brutality and inequality issues already taking place in cities across the country.
“People are in the streets right now about concerns about equity and racial justice in particular and it’s not clear which way that cuts in terms of their political base,” Banks said. “Is this a time when we are going to double down and say end DACA or is this a ‘We will think about it’?
“The other thing is DACA has widespread public support and so it’s not clear they would want to waste their political capital on that,” Banks added.
But Trump suggested he would try and end the DACA program again, rather than waiting for Congress to find a permanent solution through legislation.
“As President of the United States, I am asking for a legal solution on DACA, not a political one, consistent with the rule of law. The Supreme Court is not willing to give us one, so now we have to start this process all over again,” Trump wrote in one of several posts on Twitter addressing the Supreme Court’s DACA ruling.
One outstanding question is whether the Supreme Court’s ruling means the the DACA program will accept new applications. Until now, while the DACA case was pending in the courts, only individuals who already have DACA were allowed to renew their permits, which expire every two years.
The program is administered by U.S. Citizenship and Immigration Services.
USCIS Deputy Director for Policy Joseph Edlow in a written statement blasted the Supreme Court’s decision, saying the court’s ruling “has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program.”
Edlow reiterated the Trump administration’s position that then-President Barack Obama’s executive action creating the program was illegal.
“The constitutionality of this de facto amnesty program created by the Obama administration has been widely questioned since its inception. The fact remains that under DACA, hundreds of thousands of illegal aliens continue to remain in our country in violation of the laws passed by Congress and to take jobs Americans need now more than ever,” Edlow said.
He added, “if Congress wants to provide a permanent solution for these illegal aliens it needs to step in to reform our immigration laws and prove that the cornerstone of our democracy is that presidents cannot legislate with a ‘pen and a phone.’”
Will Trump try to end DACA again?
It’s unlikely that Trump will try to end the DACA program again before the November election, said Sarah Pierce, a policy analyst at the Migration Policy Institute, a nonpartisan think tank.
Polling has shown the DACA program has widespread bipartisan support, and Trump risks alienating Republican voters by trying to end the program, although doing so would help solidify his base, she said.
But if Trump does decide to try and end the program, he will have two options.
One option would be to issue a new memorandum that takes into consideration shortcomings outlined in the Supreme Court’s opinion of the first attempt to end the program in 2017.
This time, the administration would have to consider and weigh ways in which DACA recipients have made decisions based on reliance on the program, such as getting married, having children, buying houses and enrolling in educational programs, she said.
The Supreme Court faulted the administration for not considering these “reliance” issues when it issued the initial 2017 memo to wind down the DACA program, she said.
The Supreme Court also said the Trump administration failed to demonstrate it had considered only ending work permits issued via the DACA program while continuing to allow DACA recipients to receive deportation protections under what is known as deferred action.
“They never weighed that option. Instead, they just said we are going to end both,” Pierce said.
“This new memo that they could construct would need to include both those things” — that the administration considered the effect ending the program would have on the lives of DACA recipients and that it considered the option of protecting this group of people from deportation without providing work permits, she said.
“But they would have to be careful that they didn’t arrive at a preordained conclusion to go through this exercise just to get right with the court,” she said.
The second option for ending the program would be for the administration to publish a new rule in the Federal Register and then solicit notices and comments from stakeholders for a 30 day period, she said.
Both options could take months to play out, she said.
DACA recipients celebrate ruling
About 100 DACA recipients and supporters gathered Thursday morning outside the Phoenix offices of Immigration and Customs Enforcement to celebrate the Supreme Court’s decision.
Today “was the first morning I was able to breathe,” said Korina Iribe, a DACA recipient from Phoenix brought to the U.S. from Mexico as a child.
The demonstrators called on Congress to pass legislation that would allow “Dreamers” to apply for permanent legal status.
They also marched on the sidewalk around the ICE headquarters calling for officials to “defund” ICE and for the agency to stop separating families through deportations. They also want local police to stop cooperating with federal immigration authorities.
Jose Patiño, another DACA recipient, said he didn’t sleep the nights before each day the Supreme Court was scheduled to issue opinions.
“I knew this was a decision that could change my life,” said Patiño, 31, who came to the U.S. from Guanajuato, Mexico, when he was 6 and graduated with a degree in mechanical engineering from Arizona State University and a master’s degree in secondary education from Grand Canyon University.
On mornings that the Supreme Court issued opinions, he would open his laptop and anxiously wait to see if the DACA ruling was released.
On Thursday, he said he yelled and smacked a table with his hand in joy, spilling coffee on his shirt, when he realized the Supreme Court’s ruling meant the DACA program will continue for now.
“It was such a relief. I couldn’t believe it. I was expecting they were going to side with the administration. It was a huge, joyous moment,” said Patiño, education and policy director at Aliento, an immigrant advocacy group.
DACA recipients had worried that if the Supreme Court had issued a ruling that resulted in the termination of the program, personal information DACA recipients supplied to U.S. Citizenship and Immigration Services when applying for the DACA program could have been turned over to ICE and used to round them up.
DACA recipients’ effect on economy
There were approximately 649,070 active DACA recipients as of Dec. 21, 2019, according to the most recent USCIS data.
Of the 649,070 active DACA recipients, 80% are from Mexico and nearly 9% are from Central America, according to USCIS data.
The average age of all current DACA recipients is 26; about two-thirds are between the ages of 21 and 30.
In the years since young undocumented immigrants brought to the U.S. as children have received deportation protections and work permits under the DACA program, many have had children in the U.S., bought homes, graduated from college, and gotten jobs.
There are about 254,000 children born in the U.S. who have at least one DACA parent, according to a study by the Center for American Progress, a liberal think thank.
About 56,100 own homes, and pay $566.9 million annually in mortgage payments. Other DACA recipients pay $2.3 billion in rent each year, according to the study.
The households of DACA recipients pay $5.6 billion in federal taxes, and $3.1 billion in state and local taxes, each year, the study said.
History of DACA program
Obama created the DACA program in June 2012 after Congress failed to pass legislation that would have given “Dreamers,” as undocumented immigrants who came as children are known, the opportunity to legalize their immigration status.
At the time, Obama was running for reelection and needed support from politically important Latino voters, many of whom were frustrated that he had not fulfilled his campaign promise to pass immigration reform legislation. Many Latino voters also were angry that under the Obama administration, the U.S. deported a record number of immigrants, causing disruptions in families and immigrant communities.
Under the DACA program, undocumented immigrants who had been in the United States since 2007, were under the age of 16 at the time of arrival and were under the age of 31 as of 2012, were eligible to apply for the program. The program also required applicants to have a high school diploma or equivalent and not have committed any serious crimes.
DACA recipients are allowed to live and work temporarily in the U.S. for two years without the threat of deportation through what is known as prosecutorial discretion, in exchange for coming forward and registering their personal information with the government and undergoing background checks.
The program does not grant legal status, but deportation protections and work permits could be renewed every two years.
Trump campaigned to end the DACA program as part of a broader effort to clamp down on illegal immigration, including building a wall along the southern border with Mexico, though he expressed sympathy for “Dreamers.”
On Sept. 5, 2017, the Trump administration announced it would begin winding down the program over the next six months and argued that the program was an overreach of the president’s executive authority.
Trump’s effort to rescind the program was stymied by a flurry of lawsuits by DACA advocates that contend the program is legal and that the Trump administration improperly tried to end it without adequate consideration of the disruptions it will create in the lives of DACA recipients and others.
The lawsuits generally argued that the Trump administration’s ending of the program violated equal protection and due process rights and that the government failed to provide an opportunity for notice and comment under the Administrative Procedure Act on a policy change that would disrupt the lives of DACA recipients, and also affect states where they live, universities where they study, and their employers.
DACA advocates also argued that the Trump administration’s decision to end the program was “arbitrary and capricious” because the government had not provided valid reasons for doing so.
How DACA got to the Supreme Court
In 2018, three federal judges in separate jurisdictions issued rulings in separate cases rebuking the Trump administration’s reasoning for ending the program. Two of the three federal judges issued injunctions that temporarily blocked the government from ending the DACA program while litigation was pending. The injunctions allowed DACA recipients to renew their permits but did not allow new people to apply.
In June 2019, the Supreme Court agreed to hear the DACA case. Several of the legal challenges were consolidated into one case.
In November 2019, hundreds of DACA recipients and their supporters, some of whom had walked more than 200 miles from New York to Washington, D.C., gathered outside the Supreme Court building on the day justices heard oral arguments inside a packed courtroom.
States with the highest number of DACA recipients
• California: 185,880. • Texas: 107,020. • Illinois: 34,150. • New York: 28,560. • Florida: 25,090. • Arizona: 24,120.